A felony conviction in California rarely does not cause an individual to lose their rights to own, possess, or purchase firearms. Prohibitions following a felony conviction are generally a lifetime ban on exercising your firearm rights. The Law Offices of M. Gabriela Guraiib is experienced in navigating post-conviction remedies and can assist in potentially getting your gun rights reinstated.
Overview of Gun Rights Under California and Federal Law
Per District of Columbia v. Heller, 554 U.S. 570 (2008), and a statement made by Justice Scalia during this case, “The right secured by the Second Amendment is not unlimited. [It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” This provides the framework for states to impose restrictions such as background checks, licensing and registration, magazine or type of firearm restrictions, minimum age requirements, and previous conviction or incarceration status. As long as the state does not outrightly ban firearms, especially those used for traditional purposes such as hunting or self-defense, these restrictions are generally considered reasonable by the higher courts.
According to the Giffords Law Center, California has the strictest firearm laws in the country. Not only are there background checks and eligibility requirements, but California has also imposed restrictions on magazine capacities, the carrying of firearms in public, safe storage requirements, and regulations on ammunition.
California Firearm Eligibility Rules
There are no blanket ownership laws in California, however there are requirements related to purchasing a firearm. To purchase a firearm, you must pass a written test to obtain a firearm safety certificate, go through a licensed gun dealer for the purchase, pass a background check, and wait the mandatory 10-day period to complete the sale before taking possession of a firearm. The background check reviews for felonies, violent misdemeanors, elder, child, or animal abuse, and whether an individual has a history of severely impairing mental illness.
Federal Firearm Prohibitions
The federal Gun Control Act of 1968 prohibits firearm and ammunition possession by convicted felons who were convicted of a crime punishable by imprisonment for a term of over 1 year. Currently, the only paths towards regaining your federal firearm possession rights are by petitioning the Attorney General. Even if state law changes and accommodates restoration of firearms rights, federal laws independently prohibit firearm possession and can leave you at risk for federal penalties.
Why Both Systems Matter
Restoration of rights under state laws can make owning a firearm permissible in the eyes of the state government, but state restoration does not translate to federal restoration. Federal prohibitions can still be in force, and an individual can still be subject to federal prosecution for violating those statutes. This makes contacting an attorney well-versed in post-conviction relief, such as the Law Offices of M. Gabriela Guraiib, necessary for help in navigating both state and federal procedures.
What Is Considered a Felony in California?
In California, a felony is a crime punishable by death, imprisonment in a state prison, or incarceration in a county jail. Felonies in California fall into three main categories:
- Violent felonies such as murder, rape, kidnapping, robbery, or assault.
- Drug felonies related to the possession, sale, or transportation of drugs.
- Property crimes, including arson, burglary, or grand theft.
Some offenses can be charged as either misdemeanors or felonies depending on their severity, such as assault with a deadly weapon, criminal threats, child endangerment, domestic battery, or driving under the influence (provided it is a first offense for a DUI). Since misdemeanors typically have incarceration of 364 days or less in a county jail, the federal Gun Control Act restrictions are not triggered, so firearm possession rights are generally retained. An experienced attorney at the Law Offices of M. Gabriela Guraiib can assist you in negotiating offenses that could be classed as either a misdemeanor or felony to be charged as misdemeanors to help you retain your gun rights.
Convictions from other states or federal courts can trigger a felony gun ban in California, as established in People v. Lang (1989) 49 Cal. 3d 991, 1038, even if the offense would have been classified as a misdemeanor in California. These convictions can count as strikes under California’s Three-Strike laws and must be taken into account by your criminal defense attorney.
Immediate Consequences of a Felony Conviction on Gun Rights
Since felony convictions generally carry a sentence greater than 1 year, most felony convictions result in a lifetime ban on owning or possessing firearms. Under 18 U.S.C. § 922(g)(1), it is federally “unlawful for any person [,] who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year [,] to possess in or affecting commerce, any firearm or ammunition.” As this is a federal prohibition, it has nationwide impacts, not just restrictions for a single state.
Possession vs. Ownership
Firearm restrictions reference possession or access to firearms, not ownership. If an individual with felony convictions resides in a home where they can access firearms, under the California penal code, possession and access, much less ownership of a firearm, are prohibited.
Ammunition Restrictions
California penal codes also state that firearm prohibitions for felony convictions extend to ammunition and ammunition feeders such as magazines. Once again, the restrictions are not solely for ownership, but for possession, access, purchasing, and use.
What Happens If You Violate a Felony Gun Ban?
Possession of a firearm by a felon is considered a felony offense of its own. This can count as a strike under California’s 3-strike policy, which can result in stricter penalties depending on previous convictions.
Sentencing Enhancements
Penalties for violating California Penal Code 29800(a)(1) include 16 months to 3 years of prison time, fines up to $10,000, or probation that has restrictions on travel, mandatory counselling, check-ins with a probation officer, and attendance at educational programs.
Firearm Seizure and Forfeiture
When firearms are seized in connection with a criminal offense, they are held in evidence until the judicial proceedings are resolved. If you are convicted of a crime that results in the loss of your firearm rights, provided the firearms were not used to commit the crime and had been lawfully purchased by you, your attorney can work to get a court order for the release and resale of the firearms on your behalf, allowing you to recoup some of the economic loss. In some cases, the Law Offices of M. Gabriela Guraiib can work with the courts to get your firearms released into the possession of an eligible relative or friend.
Misdemeanors That Also Affect Gun Rights
California penalizes some misdemeanors with a 10-year ban on firearm rights. Some of the misdemeanors that fall under these laws are:
- Threatening law enforcement or public officials, such as school teachers or elected officials.
- Intimidating or intending to intimidate a witness or victim with a deadly weapon.
- Bringing a loaded firearm into a state or court building, or the residence of a constitutional officer.
- Assault with a deadly weapon or sexual battery.
- Storing a firearm while knowing someone who is prohibited from possessing a firearm may have access to it.
Under federal law 18 U.S.C. §922, persons convicted of misdemeanor domestic violence, or subject to court-ordered restraints related to harassing, stalking, or threatening an intimate partner or child of such intimate partner, are under lifetime firearm rights revocation.
Can You Restore Firearm Rights in California?
While it is dependent upon the nature of your conviction, it is possible to restore firearm rights in California under limited circumstances. Speaking with a criminal defense attorney at the Law Offices of M. Gabriela Guraiib can help you navigate whether your case can qualify for any of those circumstances.
Reduction of a Felony to a Misdemeanor
Under California Penal Code 17(b), if the court decides to impose a punishment other than incarceration in either the state prison or the county jail or designates the offense as a misdemeanor due to circumstances such as it being a first offense, severity of the offense, or mitigating circumstances, it is a misdemeanor for all purposes, including firearm rights. Additionally, if the offending individual is processed in the Division of Juvenile Justice, and the sentencing does not exceed 1 year, once the defendant is discharged from the Division of Juvenile Justice, the offense shall be classified as a misdemeanor for all purposes.
Expungement (Dismissal Under Penal Code 1203.4)
An expungement converts a conviction to a dismissal and can release you from the penalties of that conviction. This does not automatically restore your firearm rights, especially if the conviction was due to a violent crime. Under California Penal Code § 1203.4, a dismissal merely removes the charge from your criminal record, reopening housing, professional, and licensing avenues that were previously closed to you. An automatic reinstatement of firearm or driving rights is not included in an expungement.
Certificate of Rehabilitation
A Certificate of Rehabilitation (COR) is a court order that declares an individual rehabilitated from their convictions, and requires them to have completed additional requirements and a 7-10 year period free from additional convictions post completing their sentencing. A COR is only valid for state offenses and can be a requirement for a governor’s pardon.
Federal Restoration Challenges
Under 18 U.S. Code § 925(c), to federally restore firearm rights, an individual must petition the Attorney General and show that the circumstances of the offense, their reputation, and their record will not place public safety at risk if their firearm rights are reinstated.
Special Considerations for Old or Reduced Convictions
Pre-Realignment Cases
Older cases before the realignment may require deeper review, as an individual may have served time in a state prison when post-realignment, they would have served in a county jail, which can complicate the reinstatement of firearm rights. A comprehensive review by the Law Offices of M. Gabriela Guraiib can help clarify and streamline the processes available for your case.
Juvenile Adjudications
For a juvenile conviction that was designated as a misdemeanor by the courts or had a sentence of less than 1 year, once the sentence is complete is a misdemeanor for all purposes legally, which can make reinstatement of firearm rights a much simpler process.
Pardoned or Vacated Convictions
Pardoned convictions can result in the restoration of most of your rights, but they can still count as strikes under California’s 3-strike policy, and it does not seal your criminal record from the view of employers or from use in any future criminal cases.
A vacated conviction is when the verdict on the case is nullified. This does mean the case is erased (dismissed), just that the judgment has been erased, but the case can be retried, and you can face another judgment and sentencing.
Immigration Consequences and Firearm Restrictions
Non-citizens who are convicted of felonies don’t just face sentencing or loss of firearm rights. Federal consequences, such as revocation or non-renewal of non-immigrant visas, such as student visas, denial of status adjustment requests (i.e., to become a permanent resident or citizen), termination of DACA status, and deportation, are all risks of a conviction as a non-citizen.
Why Attempting Restoration Without Legal Guidance Is Risky
Experienced legal counsel, as found with the Law Offices of M. Gabriela Guraiib, is critical in navigating firearm rights restoration. Misunderstanding the requirements to reinstate firearm rights and skipping steps can have you in violation of the laws and lead to new felony charges related to unlawful possession or use of a firearm. Partially remedying your situation on a state level without addressing the federal level can have you in compliance with California’s requirements, but leave you at risk of federal penalties and convictions.
How the Law Offices of M. Gabriela Guraiib Can Help
The Law Offices of M. Gabriela Guraiib makes being detail-oriented the linchpin of their strategies in helping you navigate the restoration of your firearm rights. Through comprehensive record reviews, they are able to develop post-conviction relief strategies tailored to your situation and conviction.
Walking you through each step of the way through petition preparation and court representation, the Law Offices of M. Gabriela Guraiib will provide you with guidance on long-term legal planning and how to give your case its best chance of success. Reach out to our experienced legal team today to start the process of getting your rights reinstated.
